AN
ACT to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as
amended, relating to the offense of driving in an impaired state; establishing
the offense of driving a vehicle while he or she is in an impaired state;
establishing the offense of driving a vehicle while he or she is in an impaired
state but has an alcohol concentration in his or her blood of less than fifteen
hundredths of one percent by weight; adding influence of inhalant substances in
definition of impaired state; and providing for penalties.

Be it enacted by the Legislature of West Virginia:

That §17C-5-2 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:

(3) ASerious
Bodily Injury@ means
bodily injury that creates a substantial risk of death, that causes serious or
prolonged disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.

(b) Any person who drives a vehicle in this state while he
or she is in an impaired state and such impaired state proximately causes the
death of any person is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than three nor more
than fifteen years and shall be fined not less than $1,000 nor more than
$3,000: Provided, That any death charged under this subsection must
occur within one year of the offense.

(c) Any person who drives a vehicle in this state while he
or she is in an impaired state and such impaired state proximately causes
serious bodily injury to any person other than himself or herself, is guilty of
a felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than two nor more than ten years and shall
be fined not less than $1,000 nor more than $3,000.

(d) Any person who drives a vehicle in this state while he
or she is in an impaired state and such impaired state proximately causes a
bodily injury to any person other than himself or herself, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for not
less than one day more than one year and shall be fined not less than $200 nor
more than $1,000: Provided, That such jail term shall include actual
confinement of not less than twenty‑four hours: Provided, however,
That a person sentenced pursuant to this subsection shall receive credit for
any period of actual confinement he or she served upon arrest for the subject
offense.

(e) Any person who drives a vehicle in this state: (i) while
he or she is in an impaired state or (ii)while
he or she is in an impaired state but has an alcohol concentration in his or
her blood of less than fifteen hundredths of one percent by weight, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in jail for up
to six months and shall be fined not less than $100 nor more than $500: Provided,
That a person sentenced pursuant to this subsection shall receive credit for
any period of actual confinement he or she served upon arrest for the subject
offense.

(f) Any person who drives a vehicle in this state while he
or she has an alcohol concentration in his or her blood of fifteen hundredths
of one percent or more, by weight, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than two days nor
more than six months, which jail term is to include actual confinement of not
less than twenty‑four hours, and shall be fined not less than $200 nor
more than $1,000. A person sentenced pursuant to this subdivision shall receive
credit for any period of actual confinement he or she served upon arrest for
the subject offense.

(g) Any person who, being a habitual user of narcotic
drugs or amphetamine or any derivative thereof, drives a vehicle in this state
is guilty of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not less than one day nor more than six months, which jail term is to
include actual confinement of not less than twenty‑four hours, and shall
be fined not less than $100 nor more than $500. A person sentenced pursuant to
this subdivision shall receive credit for any period of actual confinement he
or she served upon arrest for the subject offense.

(h) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who is in an impaired state is
guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail
for not more than six months and shall be fined not less than $100 nor more
than $500.

(i) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who is a habitual user of narcotic
drugs or amphetamine or any derivative thereof is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail for not more than six months
and shall be fined not less than $100 nor more than $500.

(j) Any person under the age of twenty‑one years who
drives a vehicle in this state while he or she has an alcohol concentration in
his or her blood of two hundredths of one percent or more, by weight, but less
than eight hundredths of one percent, by weight, for a first offense under this
subsection is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $25 nor more than $100. For a second or subsequent offense
under this subsection, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for twenty‑four hours and shall
be fined not less than $100 nor more than $500. A person who is charged with a
first offense under the provisions of this subsection may move for a
continuance of the proceedings, from time to time, to allow the person to
participate in the Motor Vehicle Alcohol Test and Lock Program as provided in
section three‑a, article five‑a of this chapter. Upon successful
completion of the program, the court shall dismiss the charge against the
person and expunge the person's record as it relates to the alleged offense. In
the event the person fails to successfully complete the program, the court
shall proceed to an adjudication of the alleged offense. A motion for a
continuance under this subsection may not be construed as an admission or be
used as evidence.

A person arrested and charged with an offense under the
provisions of this subsection or subsection (b), (c), (d), (e), (f), (g), (h)
or (i) of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.

(k) Any person who drives a vehicle in this state while he
or she is in an impaired state and has within the vehicle one or more other
persons who are unemancipated minors who have not yet reached their sixteenth
birthday is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than two days nor more than twelve months, and
shall be fined not less than $200 nor more than $1,000: Provided, That
such jail term shall include actual confinement of not less than forty-eight
hours: Provided, however, That a person sentenced pursuant to this
subdivision shall receive credit for any period of actual confinement he or she
served upon arrest for the subject offense.

(l) A person violating any provision of subsection (d),
(e), (f), (g), (h) or (j) of this section, for the second offense under this
section, is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than six months nor more than one year and the
court may, in its discretion, impose a fine of not less than $1,000 nor more
than $3,000.

(m) A person violating any provision of subsection (d),
(e), (f), (g), (h) or(j) of this section, for the third or any subsequent
offense under this section, is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less than two nor
more than five years and the court may, in its discretion, impose a fine of not
less than $3,000 nor more than $5,000.

(n) For purposes of subsections (l) and (m) of this
section relating to second, third and subsequent offenses, the following events
shall be regarded as offenses under this section:

(1) Any conviction under the provisions of subsection (b),
(c), (d), (e), (f), (g) or (h) of this section or under a prior enactment of
this section for an offense which occurred within the ten‑year period
immediately preceding the date of arrest in the current proceeding;

(2) Any conviction under a municipal ordinance of this
state or any other state or a statute of the United States or of any other
state of an offense which has the same elements as an offense described in
subsection (b), (c), (d), (e), (f), (g), (h) or (i) of this section, which
offense occurred within the ten‑year period immediately preceding the
date of arrest in the current proceeding; and,

(3) Any period of conditional probation imposed pursuant
section two-b of this article for violation of subsection (e) of this section,
which violation occurred within the ten‑year period immediately preceding
the date of arrest in the current proceeding.

(o) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section if the person
has been previously arrested for or charged with a violation of this section
which is alleged to have occurred within the applicable time period for prior
offenses, notwithstanding the fact that there has not been a final adjudication
of the charges for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and particulars of
the previous offense or offenses. No person may be convicted of a second or
subsequent offense under this section unless the conviction for the previous
offense has become final, or the person has previously had a period of
conditional probation imposed pursuant to section two-b of this article.

(p) The fact that any person charged with a violation of
subsection (b), (c), (d), (e), (f) or (g) of this section, or any person
permitted to drive as described under subsection(h) or (i) of this section, is
or has been legally entitled to use alcohol, a controlled substance or a drug
does not constitute a defense against any charge of violating subsection (b),
(c), (d), (e), (f), (g), (h) or (i) of this section.

(q) For purposes of this section, the term Acontrolled substance@ has the meaning ascribed
to it in chapter sixty‑a of this code.

(r) The sentences provided in this section upon conviction
for a violation of this article are mandatory and are not subject to suspension
or probation: Provided, That the court may apply the provisions of
article eleven‑a, chapter sixty‑two of this code to a person
sentenced or committed to a term of one year or less for a first offense under
this section: Provided, however, That the court may impose a term of
conditional probation pursuant to section two-b of this article to persons
adjudicated thereunder. An order for home detention by the court pursuant to
the provisions of article eleven‑b of said chapter may be used as an
alternative sentence to any period of incarceration required by this section
for a first or subsequent offense: Provided, further, That for any
period of home incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no fewer than
five days of the total period of home confinement ordered and the offender may
not leave home for those five days notwithstanding the provisions of section
five, article eleven‑b, chapter sixty‑two of this code: And provided
further, That for any period of home incarceration ordered for a person
convicted of a third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the total period of
home confinement ordered and the offender may not leave home for those ten days
notwithstanding section five, article eleven‑b, chapter sixty‑two
of this code.